Consti Ii Project .docx

RESERVATION IN EMPLOYMENT IN PRIVATE SECTOR

INTRODUCTION

Reservation in India is a law of a form of affirmative action whereby a percentage of seats are reserved in the public sector units, union and state civil services, union and state government departments and in all public and private educational institutions for the socially and educationally backward communities. Reservation is a form of quota based on affirmative action According to justice Chinappa Reddy: Reservation is not a charity it is representation. This representation is giving to the unrepresented community.

Reservation in Employment: The constitution provides for both appointment and promotion in the government service. Article 16 (4) empowers the state to make any provision for the reservation in appointments, or posts in favour of any backward class of citizens. Article 16 (4A) enables the state to make provision for reservation in matters of promotion to any group or groups of posts in the services under the state in favour of the Scheduled caste and scheduled tribes. Article 335 states the claims of the members of the Scheduled caste and scheduled tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointment of service and posts in connection with the affairs of the union or of a state.

Conclusion The aim of the article is to create sense of awareness of equal life to all and equal share in all because still we are living in a life of contradictions. In politics, we have equality and inequality in social and economic life. In politics, we must recognize the principle of one man one vote and one vote one value. In our social and economic life, we have been continuously denied the principle of one man one value. Now we need equal representations and reservation in private sector for all the communities. There is great need for amendment to the Indian constitution for reservation in private sector for deprived communities by the politicians and ruling governments.

Reservation in private for profit sector is advocated on two grounds – (1) that there is discrimination; and (2) they have a social obligation. The counter argument against: (1) is that there is no incentive for discrimination for a business since it is concerned only with money-so only with merit. If business avoids merit, it will dig its own grave. The counter argument to this counter argument is that there is both business compulsion and personal imperative to do discrimination. (2) the counter argument is that the 'private' is protected by autonomy absolving it of social obligation. The counter argument to this is that the supposed claim of the autonomy of the private is based on mixing up the private with the personal and autonomy with license.

Concept of Private Sector

In the Indian economy, both the public sector and the private sector have an important placing. Both operate in almost all the sectors of the economy, although their relative positions differ widely in different sectors.

We began the subject by describing the distinguishing features of the two sectors, public and private, as also their standing in the economy as a whole. This will give us a perspective for discussing the two sectors separately.

Public sector. The areas falling within the public sector are many. Among the many activities of the public sector the important ones are: banking, life and general insurance, railways, road transport, air services, shipping etc. Besides, there are large governmental trading agencies like the state trading corporation etc. In the field of industry, the public sector, till very recently has been a strong sector, and qualitatively superior to the private sector. However, as per the new policy, its activities have been confined to certain select, though

important, areas. These are : infrastructure (like transport, communication, power etc.);. exploration and exploitation of oil and mineral resources; technology development and building of manufacturing capabilities in areas which are crucial in the long-term development of the economy, and where private sector investment is inadequate; and manufacture of products where strategic considerations predominate such as defence equipment.1

Private Sector. The private sector in India includes not only the organized industrial sector but also agriculture, small industry, trade and a great deal of activity in housing and construction and other fields. A substantial share of the agricultural sector, which contributes a little over one-third of our national income and engages three-fourths of our manpower, is in private hands. The statistics relating to the macro-aggregates makes it clear that the private sector accounts for more than 90 per cent of the total manpower employed and about 80 per cent of the net domestic product. Thus, economic activity in the sector is motivated primarily by profit.

Privatization : One set of measures are meant to inject a strong dose of impulses associated with the private sector. Towards this end nine industries, out of the seventeen reserved for the public sector, have been earmarked for the private sector. These include such important industries as aircraft manufacture, air transport, ship-building, processing of non-ferrous metals, iron and steel, generation and distribution of electricity, telephones and telephone cables, telegraph and wireless apparatus, heavy castings and for goings of iron and steel, heavy plants and machinery required for iron and steel production, and for mining, and heavy electrical plant including large hydraulic and steel turbines. Besides the government has, through, a part disinvestment of its capital in some industries, made the private sector co- owner of these industries. Further, as laid down in the new industrial policy the government is to shed off a number of such industries as are sick, cater to the production of consumer goods, belong to non-strategic areas, where the private sector has developed sufficient expertise and resources etc. 1

Indian Economy, Problem of Development and Planning; A.N. Agarwal, at p. 387.

While much of the public sector will be privatized, its own field of operations will be drastically curtailed. The areas for the public sector will now consist of the following: essential infrastructure goods and services; exploration and exploitation of oil and mineral resources; technology development and building of manufacturing capabilities in areas which are crucial in the longterm development of the economy and where private sector investment is inadequate,

manufacture

of

products

where

strategic

considerations

predominate such as defence equipment. Thus the thrust of the policy is to permit the private sector to own and/ or manage a greater part of the industries so far run exclusively by the government. It has the same time restricted its area of operations to those industries which on social and strategic grounds must remain in the government sector.

CASES PRECEDING RESERVATION IN PRIVATE SECTOR 

TMA Pai Foundation v. State Of Karnataka2

The scope of governmental regulation in unaided educational institutions was curtailed. The court held that the state cannot interfere if the admission was on merit and a reasonable fee was being charged. However, minority educational institutions receiving aid from the state would have to admit a reasonable number of students from non-minority groups. The case has changed the legal landscape for higher education. Unaided Professional Educational institutions became more autonomous. Educational institutions started their own entrance examinations. Based on this, the Supreme Court in the Inamdar case held that reservation is private institutions is unconstitutional. Parliament passed a Constitutional amendment to overcome this. The validity of this amendment is yet to be decided upon. 

P.A. Inamdar v. State of Maharashtra3

The highly debated case of P.A. Inamdar v. State of Maharashtra, (9 judges bench case) can be considered as the base of the reservation in Private Sector because the 93rd Amendment of the Indian Constitution was inspired by this case. In this case a number of learned counsel addressed the Court at the time of hearing by raising many issues and canvassing different view-points of law referable to those issues. After considering those issues the Hon’ble Supreme Court of India held that a minority educational institution has a right to admit students of its own choice, it can, as a matter of its own freewill, admit students of non-minority community. However, non-minority students cannot be forced upon it. The only restriction on the freewill of the minority educational institution admitting students belonging to non-minority community, is, as spelt out by Art. 30 itself, that the manner and number of such admissions should not be violative of the minority character of the institution.

2

2002 AIR SCW 4957 : AIR 2003 SC 355.

3

AIR 2005 SC 3226

On the point of reservation in educational institutions', the Court held that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students or their own choice including students of nonminority community as also members of their own community from other States, both to limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Art. 30(1). Neither in the judgment of Pai Foundation4 nor in the Constitution Bench decision in Kerala Education Bill, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats of the candidates chosen by the state as if it was filling the seats availability to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation5. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Art. 30(1) or a reasonable restriction within the meaning of Art. 19(6) of the Indian Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they, are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.

4

2002 AIR SCW 4957 : AIR 2003 SC 355.

In Unni Krishnan v. State of Andhra Pradesh6 (Capitation Fee case), the Supreme Court has recently, held that a private educational institution either by recognition of affiliation to the University could not ever be called an instrumentality of the State.

BASIS OF RESERVATION 

93rd Amendment of the Constitution of India (2005)

The 93rd Constitution Amendment Act, termed by Minister of Human Resource Development, Arjun Singh as only a piece of "enabling legislation", may have opened Pandora's box by amending Article 15 of the constitution to provide for reservations for OBCs in all "educational institutions" including private, whether aided or unaided, excepting minority educational institutions.

The Supreme Court delivered a unanimous judgement by 7 judges on August 12, 2005 in the case of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors, declaring that the State can't impose its reservation policy on minority and nonminority unaided private colleges, including professional colleges. All political parties without exception were unhappy with the Supreme Court's recent judgement in the P.A. Inamdar case and there was a consensus among all political parties for amending the Constitution to impose the State's reservation policies on the private unaided colleges too.

The Government reacted very quickly. The Minister for Human Resource Development, Arjun Singh, drafted and piloted the 104th Constitution Amendment Bill which was passed in the Lok Sabha on December 21st with 379 votes in favour and one vote against and one abstaining. The Rajya Sabha also passed it on December 22nd with 172 votes in favour and only two against. The BJP had protested that minority education institutions should also come under the purview of this bill, but did not oppose the bill in principle.

6

AIR 1993 SC 2178.

The 104th Constitution Amendment Bill became the the Constitution 93rd amendment Act, 2005 when President Kalam signed it on January 20, 2006 after coming very close to withholding his assent to the Bill. President Kalam had raised a number of queries and Prime Minister Manmohan Singh was apparently able to address all queries to the President's satisfaction.

According to the Constitution 93rd amendment Act, 2005, amendment of article 15.-In article 15 of the Constitution, after clause (4), the following clause shall be inserted, namely:"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."

While the Amendment was clearly intended to bring all private institutions, whether aided or unaided, under the purview of the Government's policies on reservation and fee structure, it has also quietly achieved much more than that by widening the scope of the Amendment Act to specifically include the term "admission to educational institutions". Article 15 of the constitution, as it was originally framed in 1950, stated the following and did not include the term "admission to educational institutions".

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Nothing in this article shall prevent the State from making any special provision for women and children.

Minister of HRD, Arjun Singh termed this Act as an "enabling legislation" and said all States would be required to draft their own laws to ensure implementation of this Constitution amendment. Now that this "enabling legislation" is in place, the Central Government has chosen to fire the first salvo by proposing reservations in all higher educational institutions coming under the purview of the Centre, including the IITs and the IIMs. Most state governments are likely to follow suit.

The "enabling legislation" is insidious and technically allows the government to enforce reservations not just in higher education institutions but in all educational institutions starting from the nursery upwards.

Given that the government has not been able to so far, and is no position now, to be able to provide quality primary education through state funded schools to all children, there is every likelihood that the government will find it tempting to extend reservations upto 50% (not any higher only because of a Supreme Court ruling that all reservations together can't amount to more than 50%) to all private, unaided primary schools too at some time in the future and abdicate its own responsibility of providing quality primary education for all children. It provided for 27 percent reservation for other backward classes in government as well as private higher educational institutions. Violation of Basic Structure of the Constitution by 93rd amendment by imposing reservation on unaided institutions:

Imposing reservation on unaided institutions violates the basic structure by obliterating citizens' 19(1)(g) right to carry on an occupation. Unaided entities, whether they are educational institutions or private corporations, cannot be regulated out of existence when they are providing a public service like education. That is what reservation would do. That is an unreasonable restriction. When you do not take a single paisa of public money, you cannot be subjected to such restriction. The 93rd Amendment's reference to unaided institutions must be severed. Imposing reservation on unaided institutions violates the Basic Structure by stripping citizens of their fundamental right under Article 19(1)(g) to carry on an occupation. T.M.A. Pai and Inamdar affirmed that the establishment and running of an educational institution falls under the right to an occupation. The right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution. Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution. The effect of the 93rd Amendment is such that Article 19 is abrogated, leaving the Basic Structure altered. To restore the Basic Structure, the 93rd Amendment must be severed in reference to "unaided" institutions.



Ashok Kumar Thakur V. Union Of India7

This hearing was based on a challenge by the petitioner to the policy of 27% reservation for the Other Backward Classes (OBCs) contained in the Central Educational Institutions Reservation in Admission Act 2006 (the Act). The Act was challenged on the grounds that the Union of India has failed in performing the constitutional and legal duties toward the citizenry and that the Act would have wide ramifications and ultimately result in dividing the country on a caste basis. The petitioners claimed that the matter was of such importance in terms of the Constitution and equality that it should be heard by a panel of at least five judges. It was the contention of the Petitioners that the reservation policy which was intended as a means of social engineering had now become a measure of 7

1991 SCC (3) 498

reparation. The petitioners inter alia alleged that the Constitution (Ninety-Third Amendment) Act, 2005 was against the “basic structure” of the Constitution and that it abridged the principle of equality guaranteed and protected under Article 14 read with Article 15 of the Constitution. The said Amendment Act along with the Central Educational Institutions (Reservation in Admission) Act, 2006 (enactment Act 5 of 2007) was further sought to be challenged on the ground that identification of OBC was made on the basis of caste. Interestingly the legislation was also sought to be challenged on the ground of being a “part of the vote catching mechanism” and therefore as being unreasonable.

In 2008, a constitution bench of the Supreme Court of India in this case conclusively adjudicated on the abovementioned issues and held the Constitution (Ninety-third Amendment) Act, 2005 as well as the enactment Act 5 of 2007 to be constitutional, but yet the issue is far from settled. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case.